Whitelock v. Whitelock

• Decision Date: 06 December 1928
• Docket Number: 34.
• Parties: WHITELOCK v. WHITELOCK.
• Court: Maryland Court of Appeals

143 A. 712

156 Md. 115

WHITELOCK v. WHITELOCK.

No. 34.

Court of Appeals of Maryland

December 6, 1928

Appeal from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Suit by Charles L. Wolf and wife against Armenius B. Whitelock and Caroline R. Whitelock. From the decree, defendant first named appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, DIGGES PARKE, and SLOAN, JJ.

John L G. Lee, of Baltimore, for appellant.

Ernest Volkart, of Baltimore (Robinson & Fahey, of Bel Air, on the brief), for appellee.

SLOAN J.

Armenius B. Whitelock, the appellant, was the owner in fee simple of a property in Baltimore which he and his wife, Caroline R Whitelock, appellee, conveyed to Charles L. Wolf and May W. Wolf, his wife, for the sum of $30,000, of which $15,000 was paid in cash and $15,000 secured by a mortgage from the purchaser to the appellant and the appellee, with interest at 6 per centum, payable semiannually; principal and interest being evidenced by the promissory notes of the purchasers to the appellant and the appellee. Mr. and Mrs. Wolf filed their bill of complaint, wherein they alleged that they, on March 20, 1928, tendered to the mortgagees the sum of $15,450, being principal and interest due on the mortgage. As alleged by the purchasers:

"Said defendants and each of them refused said tender made by said plaintiffs as aforesaid because said defendants were unable to agree as to who were entitled to receive said money as aforesaid, the said Caroline R. Whitelock claiming one-half thereof and the said Armenius B. Whitelock claiming all of said money."

Being unable to secure a release from the mortgagees, the purchasers, Mr. and Mrs. Wolf, prayed that the mortgagees be ordered to release the mortgage upon payment into court by the plaintiffs of the sum of $15,450 and/or that a trustee be appointed to release said mortgage upon such payment.

To this bill the appellant and appellee filed separate answers; the appellant alleging that the property sold to the plaintiffs was his, having been acquired partly from property inherited from his father and partly from his own earnings, and that the appellee had no interest in the property and had never invested any money of her own therein, and, further answering, said:

"That the said mortgage of fifteen thousand dollars ($15,000) was made to this respondent, Armenius B. Whitelock and the defendant, Caroline R. Whitelock for the sole reason and purpose, and for no other purpose, that in the event of the death of either the said Armenius B. Whitelock or Caroline R. Whitelock during the three years which was the life of the mortgage, that then and in that event the said mortgage should go to the survivor, Armenius B. Whitelock or Caroline R. Whitelock, without the necessity of an administration in the Orphans' Court of Baltimore City; that said Armenius B. Whitelock never gave or intended to give Caroline R. Whitelock one-half of said mortgage or the sum of seven thousand nine hundred and fifty dollars ($7,950.00); that the said Caroline R. Whitelock never claimed any part of the cash payment of fifteen thousand dollars ($15,000) for the sale of said property, that she never claimed any interest on said mortgage as the same has been paid for the last two and one-half years; that she did after the execution of said mortgage and before its maturity, endorse the principal note for fifteen thousand dollars ($15,000) over to this respondent, Armenius B. Whitelock and also the interest notes on said mortgage to your said respondent; and in the face of all the foregoing she now claims a gift of seven thousand nine hundred and fifty dollars ($7,950) and she refuses to sign the release of said mortgage, and is preventing the collection of same unless she is paid one-half of the same."

The defendant on her part stated that she was willing to release the mortgage provided one-half of the principal and interest due thereon, $7,725, was paid to her; that, when her husband, the appellant, requested her to execute a deed for the property to Charles L. Wolf and May W. Wolf, his wife, the appellee refused to release her dower right therein unless she was properly compensated, and that, as a result of her demands, the purchase-money mortgage which is the subject-matter of this suit was placed in their joint names; that she did indorse the several notes to her husband to facilitate the collection of the interest as it matured, and that she inadvertently indorsed and delivered to him at the same time the note for the principal amount of the mortgage, "without, however, in any manner intending to waive or relinquish any right, property or title she had in said mortgage and that she endorsed the note for the principal of the mortgage inadvertently, accidentally and by mistake." She further alleged "that the said mortgage was executed to her and her husband as tenants by the entireties; that she would not have joined in the deed for said premises unless that was done;" and that at the time her husband was represented by counsel and that he fully understood the effect of said mortgage and the rights and interest which the appellee had in the same, and that, if her husband (the appellant) is not willing now to make a division of the property she is willing to have the principal amount of said mortgage held in trust during the joint lives of appellant and appellee, with the corpus to be paid to the survivor.

The only testimony taken was that of the appellant, who undertook to say that the appellee had no interest in the property and that she had not contributed any part of the consideration named in the mortgage, so that the case is practically presented to us on the allegations contained in the respective answers of the appellant and the appellee to the bill of complaint of Mr. and Mrs. Wolf. The appellant's contention is that the execution of the mortgage and notes to himself and his wife was not a completed gift, because it was a temporary arrangement which could only be consummated in the event of his dying within the period of three years, or before the maturity of the mortgage, leaving the appellee surviving him. Under the decision of this court in Fowler v. Pendleton, 121 Md. 297, 301, 88 A. 124, 125, parol evidence is not admissible to contradict or vary the terms of a mortgage. Judge Briscoe there said:

"It is difficult to perceive upon what legal principle the appellants could be allowed to set up, in defense, an alleged verbal agreement, absolutely inconsistent with their clearly expressed terms, and contradictory thereof. The cases are conclusive, that this cannot be done."

And, quoting from the general rule stated in 27 Cyc. 1136, he further said:

"When a contract is reduced to writing, the presumption is that the entire actual agreement of the parties is contained in it and parol evidence as to their negotiations or conversations prior to its execution is not admissible to vary or explain

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